Christa Tobler

The Islamic headscarf and EU employment law: an uneasy fit?

Employers may order their employees not to wear religious apparel when interacting with customers, the European Court of Justice just ruled. Does the freedom to conduct a business outweigh the right not to be discriminated against on grounds of religion?

It is trite to say that issues such as identity, integration and pluralism are at the very core of public debate today. On 14 March, the Court of Justice of the European Union (CJEU) contributed to the debate by way of its judgments in the cases of Achbita v. G4S (Case C-157/15) and Bougnaoui v. Micropole SA (Case C-188/15). These cases concern the dismissal of two female employees, in Belgium and France, for wearing a headscarf for religious reasons. In the first case, the employer operated a general policy prohibiting the visible wearing of any political, philosophical or religious sign in the workplace. In the second case, the employer cited the wishes of a customer to no longer have the services of a worker wearing an Islamic headscarf.

Seen from the perspective of the EU, the two judgments add to the large body of EU non-discrimination law. They are the first cases on discrimination on grounds of religion under Directive 2000/78. In Achbita the CJEU accepts that the employer’s desire to pursue a policy of neutrality in its relations with customers must be considered legitimate; thus, it can justify instances of apparent indirect discrimination on grounds of religion, provided that the measure is proportionate. According to the CJEU, an employer’s wish to project an image of neutrality towards customers relates to the freedom to conduct a business, which is protected under Art. 16 of the EU Charter of Fundamental Rights. With respect to proportionality, the CJEU adds in par. 43 that “it is for the referring court to ascertain whether, taking into account the inherent constraints to which the undertaking is subject, and without G4S being required to take on an additional burden, it would have been possible for G4S, faced with such a refusal, to offer her a post not involving any visual contact with those customers, instead of dismissing her”. In Bougnaoui, on the other hand, the CJEU states that the wishes of customers cannot serve as a genuine and determinative occupational requirement under Art. 4(1) of Directive 2000/78, and hence cannot amount to a justification of discrimination – a finding that is in line with existing case law.

The judgments immediately attracted attention from various political quarters. Some applauded the judgment; the French presidential candidate Fillon said it came as a relief to “thousands of companies and their workers”. Others expressed the fear that the judgment will legitimise discrimination against Muslim women. It is a matter for speculation whether the CJEU was influenced by the current political climate in Europe vis-à-vis migration and integration issues.

What to make of the case? For one, it should be noted that the CJEU did not introduce a ‘European headscarf ban’, as was suggested by some; the Court merely indicated that EU non-discrimination law is not by definition opposed to an employer’s wish to pursue a policy of neutrality. But that in itself is quite a step. From a legal perspective, it is remarkable how much weight was attached to the freedom to conduct a business – one gets the impression that this freedom is treated on a par with the freedom to manifest one’s religion and the right not to be discriminated against because of such manifestations. No doubt this will revive the old criticism that the Court gives too much weight to (economic) market freedoms, at the expense of ‘true’ fundamental freedoms and human rights. And at a practical level the question is whether those Member States that at present do not allow companies to operate a headscarf ban, can continue doing so. After all, the CJEU has ruled that an employer’s desire to pursue a policy of neutrality “must” be considered legitimate. Could it be argued that any other finding would lead to too low a level of protection for the freedom to conduct a business? An affirmative answer would mean that Member States have virtually no discretion to set higher standards to counter discrimination and protect religious minorities. Towards a ‘European headscarf ban’ after all? That can hardly be the idea behind EU non-discrimination law. After all, the EU non-discrimination directives allow the Member States, on the level of national law, to provide for a higher degree of protection against discrimination.

Nevertheless, the situation remains unclear, for the time being at least. This is also due to the terse wording of the two judgments. Unlike the Advocates General Kokott and Sharpston, who reflected extensively on the various dimensions of the two cases, the CJEU sticks to the bare essentials. This may reflect a difference of opinion amongst the judges: perhaps they could not agree on anything beyond the present text. But whatever the reason, the judgments say nothing about the importance of the freedom of religion, both for the individual and for any pluralist society, and nothing about the prospect of losing one’s job, only because of the manifestation of one’s religion. It is not so easy to reconcile this cold and distant stance with the core values of the Union, as mentioned in Article 2 TEU – among them pluralism, non-discrimination, tolerance and the protection of the rights of persons belonging to minorities.

This brings us to Strasbourg . If the dismissal of Ms. Achbita will not be overturned due a breach of the requirements of proportionality, her case is likely to end up, after exhaustion of domestic remedies, before the European Court of Human Rights. The Strasbourg Court will then have to review whether the national court’s decision to uphold her dismissal is compatible with the freedom of religion as protected in Article 9 ECHR. This may entail a review of EU non-discrimination law, even if the ECHR case will only involve Belgium as a respondent party. One may safely predict that a key question before the ECtHR will be whether the balancing test prescribed by the CJEU in par. 43 of Achbita in the context of EU anti-discrimination law and as subsequently applied by the Belgian courts, satisfies the standards that the Strasbourg Court has elaborated in the different legal context of the freedom of religion under the ECHR. In Ewaida and other cases the ECtHR took into account a number of elements that are not included in Achbita and Bougnaoui: whether the wearing of religious symbols had any negative impact on the employer’s brand or image; and whether the function in the company entailed a specific duty of loyalty to the employer’s religious doctrine (or lack of such). A crucial issue will be whether a serious attempt was made to prevent dismissal or mitigate its consequences. In several cases the Strasbourg Court noted that “a particularly important effort” was made to find another suitable post for the employee, or that the interests of the employer “far outweighed” those of the employee. This stands in stark contrast to the test proposed by the CJEU, i.e. to examine whether it would have been possible for G4S, “without being required to take on an additional burden”, to offer Ms. Achbita another post, instead of dismissing her. That is not a very demanding test for G4S, one of the largest employers in the world.

All in all, Achbita and Bougnaoui do not create the impression that the last word has been said on the scope of the prohibition of discrimination on grounds of religion and, ultimately, the freedom of religion in the EU and its legal order. And indeed, in the coming months the CJUE will have to rule on ritual slaughter (C-426/16) and the relationship between religious organisations and their employees (case C-68/17). Sensitive issues that cannot easily be dismissed.